We appreciate the invitation to share our viewpoints on
the topic of regulating protection for American workers
through the American Competitiveness Workforce Improvement
Act.

We also thank Rep. Jackson-Lee for her advocacy of
provisions to require recruitment from a wide variety of
educational institutions and through a wide array of media
as part of H.R. 4200. It is our hope that the remainder of
the committee and Congress will see the wisdom of creating
more scientists and engineers like our presenters today.

There are serious implications for the goal of increasing
the supply of underrepresented protect ed classes in the
professions of science and technology.

Without effective regulation, this goal is likely to be
retarded. ACWIA's hasty approval through a budget compromise
caused us to wonder whether protections for American workers
were clearly thought through. Several months earlier, the
Coalition had asked Rep. Maxine Waters, D-CA and the
Congressional Black Caucus why the Department of Labor had
failed to enforce civil rights laws, executive orders and
regulations in high technology.

As a result, we began the first of 17 meetings with
officials of the Office of Federal Contract Compliance
Programs, including with the director, The Honorable Shirley
Wilcher, Esq. and the deputy director, Joseph Kennedy.

Our experience offers some lessons as you conduct
oversight on how your laws are enforced and as you craft
legislation.

Imagine if you will a group of volunteer citizens
performing the first benchmarking analysis of EEO-1 forms
submitted by high technology companies, crunching more than
50,000 data fields; conducting opinion polling to assess the
extent of workplace discrimination; inducing employees
afraid of retribution to come forward to submit
discrimination claims and presenting the results to the
relevant law enforcement and regulatory officials. And being
ignored.

Or put yourself in the shoes of Mr. Lindsay Brown, who
had built a 20-year history in technology prior to
contacting us in March 1999. We advised him to exhaust his
company's human resources procedures while we alerted
federal officials that there might be a problem at his
company. By July, he wrote us, "I have been in this
type of business, telecommunications, for over 20 years,
have seen racism in Silicon Valley but never this bad. I
have gotten to the end of my rope but I refuse to let them
run me out." Mr. Brown exercised his rights in
September 1999 by hiring an attorney and filing a complaint
with the California Department of Fair Employment and
Housing. The next day, 3Com dismissed Mr. Brown. They didn't
even have the decency to tell him. He discovered his
dismissal when his e-mail no longer worked and he went to
technical support.

The absense of regulations under ACWIA and the
recalcitrance of the Labor Department and Equal Employment
Opportunity Commission to enforce such basic laws as the
Civil Rights Act of 1964 undermines the foundation of
immigration law. Economic incentives to employ foreign
workers are so powerful in a global economy that individual
workers have no opportunity to seek redress on their own.

Without an effective regulatory environment, the game
takes a lop-sided tilt in favor of the employer and any
legislation you create becomes suspect when viewed against
the Constitutional protection for due process under law.

The Ninth Circuit held in 1979 in Legal Aid Society
of Alameda County vs. Brennan that agencies may not
simply choose not to enforce regulations and laws because
they might be unpopular. It also held that agencies may not
use process to impede citizens from exercising their rights.

In our research, we learned that approximately 80 percent
of Silicon Valley high tech firms had failed to file EEO-1
reports.

"Where an employer has a segregated labor force and
uses recruitment

methods which perpetuate it, it is fair to assume that he
is aware of the

consequences of his recruitment system. All employers
required to

file reports with the EEOC must be aware of the
consequences of their

recruitment system because they are required to state
those

consequences in numerical terms."

(Rutgers Law Review, Vol. 22, No. 3, Spring 1968)

Through anecdotal reports, we were told that employers
were consciously using the ACWIA's provisions instead of
seeking employees from protected classes.

In January 2000, we received through Freedom of
Information Act, a CD-Rom with each ACWIA non-immigrant visa
labor condition application in the western United States. We
selected 100 at random, advertised the jobs through e-mail
and then submitted applications to the applicant companies
after changing addresses so that we would receive responses.

Not one of the companies responded to the resumes.

To give a graphic example, the National Conference of
Black Physics Students met at North Carolina A&T State
University in March and the National Organization of Black
Chemists and Chemical Engineers met in Miami in April. Most
of the universities that recruited at these conferences for
graduate students were historically black colleges and
universities. The second most numerous category was the U.S.
military.

Indispensibility is the most effective spur to
non-discrimination. The ACWIA's latitude to universities and
government-sponsored research facilities to staff their
research departments from overseas keeps those young people
from achieving their full potential.

NSF is spending close to $1 billion for direct stipends
and tuition reimbursements for foreign students, compared to
$80 million in ACWIA scholarships.

But let's go closer to home in Silicon Valley. For the
past 10 years, the Bay Area Chapter of B DPA-Information
Technology Thought Leaders has conducted a six-month
programming class for high schools students in Oakland and,
for the last two years, San Jose.

Students learn programming, web page design, corporate
etiquette and project management. They learn Visual Basic
and HTML. There is no prerequisite for computer experience.
More than 400 students have completed these courses. At
least 80 percent go on to higher education, particularly
those who participate in the training for several years. One
has achieved a Ph.D. in forensic science. Some have masters
degrees in computer science.

If youth see professionals that they can identify with,
then the students readily take to technology. It's just a
matter of exposing them.

Dr. Philip Emeagwali has done a better job of exposing
young people to science than anyone with his web site
http://www.emeagwali.com which attracts 156,000 students per
week.

He is recognized as one of the pioneers of the Internet
for his world record-setting performance of the fastest
computer program to that time in 1989. Emeagwali is the only
individual winner of the IEEE Gordon Bell Prize because he
used the NSFNet to deploy 56,000 individual processors to
perform supercomputer calculations of oil field simulations.
He is available to tell you about the depth of interest in
scientific careers that he has observed among American young
people.

Additional
Statement

Dr. Keith
Jackson, Physicist

The Stanford Linear Accelerator Center (SLAC) which is
managed for the Department of Energy does not have a single
African-American physicist on its technical staff. This
would not be so remarkable except for the fact that Stanford
University has produced the largest number of
African-Americans with Ph.D's in physics.

The exclusion of universities and non-profit research
laboratories from the fees associated with the use of the
H1-B workers would provide a financial incentive for these
taxpayer-supported institutions to recruit from overseas.

There should be an examination of the impact of H1-B
workers in government-supported research and development
laboratories, particularly with regard to the inclusion of
underrepresented protected classes. The fees generated by
the ACWIA generated $80 million for scholarship, but
government agencies spent close to $1 billion for tuition
reimbursements and fellowships.

Compare this to the free higher education provided to
students in most European nations. The graduate can then
pursue graduate education in the United States in a
scientific field and receive tuition, fees and living
expenses from the federal grant that his or her thesis
advisor has received.

After completing your Ph.D with this subsidy, you can
then be hired by a company who applies for an H1-B visa.

By comparison, the American student, particularly from
underrepresented protected classes, must assume a debt
approaching $50,000 beginning as an undergraduate. The
combination of the end of affirmative action programs and
the emphasis on loans instead of grants means that the
American student must often work one or more jobs while
studying.

The National Action Council for Minorities in Engineering
has learned that two-thirds of the underrepresented minority
students in engineering drop out of school because of the
lack of financial aid.

You might have seen the section on young entrepreneurs in
the Monday Wall Street Journal. The African-American
entrepreneur on the last page had to start in community
college, work and then get to a four-year institution for a
bachelor's degree.

Yet, students from abroad mentioned earlier in the
section were able to go all the way to their terminal degree
receiving a powerful boost into entrepreneurship.

The disincentives that Congress has created make it very
difficult for young people energized by role models like Dr.
Philip Emeagwali to pursue their dreams to become
scientists.

The regulation of ACWIA must look carefully at federal
agencies, universities and government-sponsored research
institutions to correct these imbalances.

In Conclusion

The demand from the H1-B program arises from the growth
of practices that were found illegal by the Griggs vs. Duke
Power and other precedents 30 years ago. The use of
qualifications that bear no relationship to work
performance, subjective hiring criteria and discriminatory
recruitment practices lead to a tiny proportion of
applicants being interviewed or hired.

Regulations must root out those practices to give
American workers a fair shot.